ACLU, EFF challenge constitutionality of FISA amendments

Congress may have voted to grant retroactive immunity to telecoms that helped …

The controversial FISA Amendments Act, which passed this summer over the fervent opposition of civil libertarians, was supposed to kill the lawsuits filed by the Electronic Frontier Foundation and American Civil Liberties Union against telecoms charged with complicity in the National Security Agency's clandestine program of warrantless wiretaps. But in a brief filed yesterday, the two civil liberties groups urged a federal court to strike down the retroactive immunity provision of that law, which they argue violates the Constitution.

The arguments offered up in the EFF/ACLU brief largely mirror those reported by Ars last month in our preview of the looming constitutional fight. The groups also submitted to the courts two full boxes of evidence designed to show that, contrary to administration claims, the surveillance engaged in by the NSA was not narrowly targeted at suspected terrorists, but swept up the communications of millions of innocent Americans. Those claims are outlined in a 60-page "Summary of Voluminous Evidence" also provided to the court. EFF attorney Cindy Cohn told Ars that their overview draws on public information to establish the "open secret of widespread warrantless surveillance of ordinary Americans—discussed in news reports, Congressional testimony, whistleblower evidence and administration admissions "

Five for fighting

The arguments against immunity fall into five main categories. First, the plaintiffs charge that Congress has illegitimately sought to block judicial redress of a Fourth Amendment claim—in essence, preventing the court from considering whether a constitutional right has been violated. This may sound odd insofar as the suit presents a claim against private actors—the telecoms—rather than the government. But EFF attorney Kevin Bankston explains that courts have in the past recognized valid constitutional claims against private entities acting essentially as agents or arms of the government, as he alleges the telecoms did via their participation in the NSA program. EFF is also suing the government directly, but Bankston argues that the government cannot just foreclose one avenue for seeking remedy of an alleged constitutional violation.

Second, as Ars reported previously, the brief argues that immunity violates the separation of powers established in Article I, Section 7 of the Constitution, by delegating to the executive branch excessive discretion to determine when and how the law will apply. The argument filed Thursday adds a novel analogy to the line item veto, which the Supreme Court has found to be unconstitutional. Congress, according to this argument, has the right and responsibility to make law, and while the Constitution gives the president the power to sign or veto legislation, it does not allow him (or, a fortiori, his subordinates) to tweak it according to his own policy preferences—even if Congress would like to give him that authority. The retroactive immunity provision of the FISA amendments, says Bankston, gives the Attorney General "unfettered discretion" to selectively void a preexisting privacy statute, without any providing any "intelligible principle" binding his exercise of that authority.

Third, the attorneys argue that immunity violates their clients' due process rights by allowing the Attorney General, rather than an impartial magistrate, to effectively decide the outcome of pending litigation. The plaintiffs vested claim against the telecoms, they say, is a kind of property right that cannot be abrogated by the executive, or even by Congress, but only disposed of by a judge.

The fourth argument is a more narrow objection to the secrecy clause of the immunity provision, which direct the court to consider evidence provided by the attorney general, establishing the telecoms' eligibility for amnesty, in secret. This, the groups argue, conflicts with their clients' First Amendment interest in access to documents in a civil proceeding, and impinges on the court's prerogative to determine the disposition of its own records. Of course, the judge could potentially agree with this claim without invalidating the broader immunity provision, or indeed, seeing any need to release any of the secret evidence submitted by the government.

Finally—and perhaps most interestingly—the brief argues that even if the immunity provision is constitutional, it does not apply to the NSA surveillance program, or to the telecoms that participated in it. The argument here rests on language in the FISA Amendments Act providing immunity only if the attorney general certifies that a telecom rendered cooperation in surveillance "designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States," and empowering the court to review any such certification for "abuse of discretion."

This is where that "Summary of Voluminous Evidence" comes in. The EFF and ACLU contend that the government was not engaging in surveillance narrowly "designed" to prevent a terrorist attack, but rather sweeping up Americans' communications in bulk. Here, Bankston stresses, what matters is not what the government told the telecoms about the NSA program, or even whether the government sincerely intended or believed it to be sufficiently narrowly tailored to prevent terrorism, but whether it was, objectively, so tailored. In light of the documentation suggesting that the program was far broader in scope than the Bush administration has claimed, the argument runs, the burden is on the government to provide substantial evidence—not merely an assertion—that the program was sufficiently narrow in scope to satisfy the requirements of the immunity language.

OK computer?

Here we bump up against a question Ars has previously considered at some length: Can computers eavesdrop? Because Attorney General Michael Mukasey has denied the allegation that NSA conducted sweeping "dragnet" surveillance, but he has done so in a conspicuously careful and selective way. Mukasey's public filing with the court asserts that there was no broad "collection" of the "contents" of communication "for the purpose of analyzing those communications through key word searches." But the EFF/ACLU brief argues that "the failure of the Attorney General to define the phrase 'collection of content' indicates that he may be subsuming within his certification a dangerous new interpretation of the Constitution and the surveillance statutes: that, even where the government uses surveillance devices to acquire the communications of millions of individuals as part of a suspicion-less dragnet, there is no government search or seizure of communications content ... unless and until those contents are processed by the government’s computers, or made available for use by a human analyst."

In the past, going at least as far back as the controversy over the FBI's "Carnivore" surveillance software, the government has argued that the "collection" or "acquisition" of a communication does not occur until it is recorded in some human-readable format. On this theory—which EFF and the ACLU vehemently reject—computer filtering of large quantities of data does not yet constitute "collection"; only the data actually flagged by the computer for later analysis is actually "collected" or "intercepted."

The denial of collection "for the purpose of... key word searches" is also rather specific. It does not appear to rule out, for instance, filtering communications for particular voiceprint matches, or the use of a particular language, or a specific regional accent. And since "content" in surveillance law has traditionally been defined as information concerning the "meaning or purport" of a communication, it is not yet clear whether a filtering process keyed to those features would be considered analysis of "content," or only of information about the communication, akin to a phone number or e-mail header.

To Bankston's chagrin, however, the government has not made that argument explicitly in this instance. "We wish they would make it," he says. "Verizon made it in one of their responses, but the government hasn't. I hope the legal issues implicit in the Attorney General's weirdly cabined reply become explicit, because those issues are at the heart of this case."

In defense of immunity

The government has until early November to submit their reply to the EFF/ACLU arguments. But Robert Alt, a legal scholar at the conservative Heritage Foundation, told Ars he saw serious flaws in the civil liberties groups' core contentions.

Most of their arguments, says Alt, "seem to arise from their frustration at trying to get at the government through the telecoms. They're trying as hard as they can to cram claims they'd like to make against the government against the telecoms." One of these, he avers, is their Fourth Amendment claim, which is properly targeted at the NSA, rather than the telecoms that may have provided the spy agency access to their networks. And he argues that even where constitutional rights are at issue, Congress is free to establish rules limiting whether and under what circumstances particular parties have a cause of action without entirely eviscerating the general right to seek remedy.

Neither is Alt much impressed with the separation of powers argument. "This is an ordinary delegation of an administrative determination," he says. "Since the 1930s, the courts have recognized the right of congress to delegate decisions of this sort to executive agencies." Invoking the recent Wall Street bailout, Alt argues that the discretion afforded the attorney general under the FISA Amendments Act is, if anything, far more constrained than the broad leeway to dispose of hundreds of billions of dollars that Congress recently granted Treasury Secretary Henry Paulson.

On due process, Alt cites Dames & Moore v. Reagan and United States v. Pink, in which the Supreme Court permitted the executive branch to block American citizens' civil litigation against the governments of Iran and the Soviet Union, respectively. Both cases turned in significant part on the president's supremacy in question of foreign affairs under the Constitution. But as far as the due process question is concerned, argues Alt, those precedents still cut against the idea of any absolute right to have a pending lawsuit settled by a judge without executive interference.

As for the "design" of the NSA surveillance program, Alt invoked Lyndon Johnson's characterization of the Gulf of Tonkin Resolution: "It's like grandma's nightgown; it covers everything that needs to be covered." Here too, he suggests, the intent of Congress was plainly to block civil action against the telecoms. If the government's surveillance procedures were poorly designed, he contends, that's an issue to raise in a suit against the government.

EFF's Bankston, who is keeping his powder dry for the upcoming showdown with the government, declined to respond to potential counterarguments in any detail. But he emphasized his confidence that "the court will agree it's an unconstitutional violation of separation of powers to try to dictate to a judge how to decide our case."